So, if you’re a rogue agency (or entire administration) within the government of the United States, arguably a nation of laws and not men, how do you go about keeping videotape evidence of unlawful torture away from the courts? Here’s a clever idea:
WASHINGTON (AP) — The Bush administration was under court order not to discard evidence of detainee torture and abuse months before the CIA destroyed videotapes that revealed some of its harshest interrogation tactics.
Normally, that would force the government to defend itself against obstruction allegations. But the CIA may have an out: its clandestine network of overseas prisons.
While judges focused on the detention center in Guantanamo Bay, Cuba, and tried to guarantee that any evidence of detainee abuse would be preserved, the CIA was performing its toughest questioning half a world away. And by the time President Bush publicly acknowledged the secret prison system, interrogation videotapes of two terrorism suspects had been destroyed.
The CIA destroyed the tapes in November 2005. That June, U.S. District Judge Henry H. Kennedy Jr. had ordered the Bush administration to safeguard “all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay.”
Cute gimmick, huh? Too cute. Way too cute.
You can take my word for it as a trial lawyer — judges — even ultraconservative judges — don’t like it when litigants screw with them. It’s always a bad idea to lie to a judge, especially if you’re eventually going to get caught doing it. But it may be an even worse idea to try to come up with a clever dodge that allows you to lie to the judge (or flaunt his or her rulings) in substance, while leaving yourself a disingenuous loophole.
To borrow from the old margarine commercial, it’s not nice to fool Mother Justice.
If Bush & Co. are smart they won’t even try this tack (it wouldn’t work anyway, the court would probably just deem the destruction of the tapes to be an obstruction of justice regardless of any order): instead, they’ll blame the destruction on a miscommunication, a rogue agent or administrator or something of the sort. Because if they really do try to make this type of hypertechnical excuse fly in court (“Gosh, Judge, these guys weren’t even in Cuba where you thought they were and where your order applied, because we had secretly hidden them somewhere else”), they’ll throw away whatever little remaining credibility they have in the federal courts.
Even the likes of Roberts and Alito won’t take that lying down. It will haunt the administration in case after case for the rest of Bush’s term and perhaps beyond.
In any case, we’ll find out soon enough how the administration plans to play this, since the ACLU is already moving to have the CIA held in contempt.
Interesting times, these. Interesting times, indeed.
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